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Wednesday, July 19, 2017

The United States Court of Appeals for the Ninth Circuit has issued an order signed only by the Clerk declaring that a significant free speech issue bearing on the rights of anonymous Internet users will be decided in a totally secret proceeding, involving sealed briefs, a sealed record, and without any help from would-be amici (including Public Citizen) seeking to explain the dangers posed by the proceeding.

Proceedings in the Trial Court

The case arises from a subpoena served by the United States on the employer-rating site Glassdoor, originally demanding identifying information about the owners of more than one hundred pseudonymous accounts that had, it appears, been used to post reviews of a particular employer whose contracting practices were subject to a federal criminal investigation. Over the past few years, Glassdoor has been one of the most aggressive companies demanding strong justification for civil subpoenas seeking to identify its users (considering how expensive legal services are, this company commitment earns it much credit in my book). Extending this approach to the criminal law context, Glassdoor refused to produce the information demanded by the grand jury subpoena, citing the First Amendment right of its users to speak anonymously.

In an effort to compromise, the government limited its production demand to eight specified reviewers. Glassdoor responded to that offer by proposing that it notify the users of the subpoena and provide identifying information for such of its users who were willing to be identified to the prosecutors. After the government rejected this offer, Glassdoor moved to quash the subpoena, invoking its users’ First Amendment right to speak anonymously which, Glassdoor contended, created a privilege against production of the information. At the same time, it notified its users of the subpoena, thus meeting one of the conditions of the Dendrite line of cases that it cited in its motion. Those cases rely on the First Amendment right to speak anonymously as a basis for posing procedural and substantive obstacles to civil subpoenas seeking to identify online speakers so that they can be served with process and sued for wrongful speech. Eventually, Glassdoor also invoked Bursey v. United States, a decision in which the Ninth Circuit quashed in part a grand jury subpoena directed at the process of publishing the newspaper of the Black Panther Party.

The entire subpoena litigation was conducted under seal, but we know some of the details because, having taken a contempt citation to secure its ability to appeal, Glassdoor next obtained the government’s stipulation for the partial unsealing of the briefs exchanges by the two sides on Glassdoor’s motion to quash. Glassdoor had appealed, and raised the possibility that parties beside itself might wish to provide the Court of Appeals with the benefit of their views of the applicable law. The trial judge granted that request; as a result the briefs supporting and opposing the Glassdoor motion to quash, as well as reply briefs both from Glassdoor and from the government, are available in the public record, as is the judge’s ruling on the motion. The finer details from the papers were redacted, including for example the name of the company under investigation and some of the detail about the content of the employee reviews whose authors. The entire docket in the trial court as preserved by RECAP is here.

We know from Judge Humetawa’s opinion that she refused to apply the Bursey line of cases because she considered that it only protected against grand jury subpoenas directed at dissent against the government, and she refused to take seriously the First Amendment rights of Glassdoor’s users because – well, for reasons that showed a misunderstanding of the First Amendment rights at issue. On the one hand, the judge thought that the First Amendment privilege being asserted could extend only to political speech, and on the other hand she seems to have suggested that no First Amendment obstacles could be posed to a grand jury subpoena because newspapers do not generally have any First Amendment rights to stop grand jury intrusion into their sources absent a showing of bad faith on the part of the government; the judge deemed Glassdoor indistinguishable from a journalistic enterprise.

The Court of Appeals Cuts Off Public Scrutiny and Participation

Public Citizen was looking forward to dissecting this analysis from a consumer and employee perspective, and we know that other civil liberties groups as well as an amicus coalition of ISP’s who face similar subpoenas were preparing amicus briefs as well. As a potential amicus, I was disappointed that Glassdoor was apparently required to file its brief under seal, because amici are ordinarily expected to avoid duplication with the parties whose positions they are supporting; without seeing Glassdoor’s brief, that would be difficult to do.

But our amicus efforts were cut short by the Ninth Circuit ruling that denied a motion by Glassdoor to unseal the appellate record in part; the Government had not objected to that motion, but asked only that certain items in the docket remained sealed. And the court did not stop with refusing to unseal. I have to assume that Glassdoor referred to impending amicus briefs as a reason for partial unsealing, as it had done in seeking unsealing in the trial court, because the Court of Appeals order added, “By direction of the panel to whom this matter is now assigned, the Court sees no need for participation by amicus curiae at this stage of the litigation.” As a result, the entire docket remains under seal.

It is hard to see what possible justification could support either part of this order. Given that so much of the docket in the District of Arizona remains unsealed, it is hard to see what legitimate secrecy interests are preserved by the requirement that the merits briefs of the parties be kept entirely secret — and will oral argument be held behind doors as well? And without real benefits from secrecy, the concealment of the arguments that persuade the Court of Appeals to reach its result in this significant First Amendment case will result in a serious loss of the sort of public accountability that the First Amendment and common law right of access to judicial records is intended to preserve.

Equally distressing is the peremptory decision by a panel of three appellate judges not to accept amicus curiae submissions. This is not an easy appeal for Glassdoor. The analogies to the Bursey line of cases and to the Dendrite line of cases are not perfect. First Amendment privileges are qualified ones that depend, in part, on how great the need for disclosure may be in any given circumstance. In the civil discovery context, the Dendrite line of cases involving subpoenas to identify defendants, and the line of decisions such as Doe v. 2themart.com involving subpoenas to identify third-party witnesses, both impose procedural and substantive requirements that test the extent of the discovering party’s need (so that the Court can decide whether a "compelling government interest" overcomes the First Amendment right to keep the speech anonymous). Because grand jury subpoenas carry a presumption of regularity, the substantive rules that govern the enforcement of those subpoenas cannot be the same as in the civil context. And it is especially hard for Glassdoor to rely on Bursey because in this case, unlike Bursey, the government does not appear to be targeting the Glassdoor reviewers out of antagonism toward their protected speech; the government is potentially prosecuting the very company whom some the reviewers might have been criticizing – is the enemy of their enemy their friend? (The fact that the users targeted by the subpoena have not filed their own motions to quash might well reflect little more than that hiring lawyers can be an expensive proposition) Might a different result be appropriate if, for example, the subpoena were directed to identifying former employees of the Trump Organization who criticized that company on Glassdoor, or identifying critics of one of the companies that supported Trump’s election campaign?

On the other hand, the trial court’s reliance on Branzburg as the key to the case is plainly wrong: Branzburg is addressed to the First Amendment rights of journalists, which is inapposite here. And at the same time, the government’s contention below that the speech in the employee reviews enjoyed something less than full First Amendment protection, because they are not “political speech,” is also plainly wrong: consumer and employee criticism of companies enjoys full First Amendment protection. Indeed, the public interest in seeing speech about businesses is especially important if, as appears to be the case, the company is one that performs contracts for the government.

Without knowing the details of the case – what the reviews said, and why the government has identified these specific reviewers as the one it wants to identify— it is hard to know how such considerations might apply here. The proper disposition of the case might well lie someplace between the positions staked out by the government and Glassdoor. The Court should be willing to hear from amici offering such alternate approaches.

Moreover, it is not at all clear how the panel could be so sure, without having reviewed argument from potential amici about why their submissions could be useful to the panel in deciding the case and, equally important, in explaining their decision. Even assuming that the panel to which this case is assigned believes, based on the sealed Glassdoor appellate brief, that they already know the proper disposition of this case, one of the most important roles that amicus briefs play is in helping judges look around the corner at other related cases and, possibly, avoid needlessly prejudicing the outcome of future cases with strong dictum or alternative holdings Those who often litigate in the Seventh Circuit have become inured to opinions from Richard Posner (and his acolytes), who sometimes exudes the sentiment that he is so smart that he never needs the thoughts of amici to inform his judgment. It would be disappointing to see that attitude spread to the Ninth Circuit.

CORRECTION: Thanks to the commenter, I have fixed erroneous gender pronouns referring to the trial judge.